Indianapolis Traction And Terminal Co. v. Isgrig
| Decision Date | 06 February 1914 |
| Docket Number | 22,504 |
| Citation | 104 N.E. 60,181 Ind. 211 |
| Parties | Indianapolis Traction and Terminal Company v. Isgrig, Administratrix |
| Court | Indiana Supreme Court |
From Hamilton Circuit Court; Meade Vestal, Judge.
Action by Sallie Isgrig, administratrix of the estate of William E Isgrig, deceased, against the Indianapolis Traction and Terminal Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)
Affirmed.
W. H Latta, Kane & Kane and F. Winter, for appellant.
Christian & Christian, Samuel E. Garrison and James M. Ogden, for appellee.
This was an action against appellant for negligence in causing the death of appellee's decedent, begun in the Marion Superior Court, and by reason of changes of venue was tried in the Hamilton Circuit Court where a verdict was returned for appellee for $ 5,000.
The assignment of errors presents two questions: (1) The sustaining of a demurrer to appellant's second paragraph of answer; (2) the overruling of the motion for a new trial.
The second paragraph of answer seeks to avoid liability on the part of the appellant by reason of the alleged fact, that appellee was riding on a pass, given him by his employer appellant, for the purpose of returning to his home, after his day's work had been finished, which pass contained a stipulation as follows:
"This ticket is issued to the person using the same, only on account of being an employe of the company and is voluntarily accepted as a gratuity, and in consideration thereof no claim is made against the Indianapolis Traction and Terminal Company for any death caused, or injury to person or property, received, while using the same."
The questions presented by the ruling on the demurrer to the second paragraph are: (1) Was the appellee's decedent a passenger within the meaning of the term, or a fellow servant? (2) If a passenger, were the terms of the pass binding upon him, and the widow and child for whom this suit is prosecuted?
As to the first proposition, the Appellate Court in Indianapolis Traction, etc., Co. v. Romans (1907), 40 Ind.App. 184, 79 N.E. 1068, after a full citation of authorities holds under the same state of facts as is here alleged that the employe was a passenger and not a fellow servant. Transfer to Supreme Court was denied in that case. The refusal to transfer was an approval of that decision by this court, and we still adhere to that opinion. This court has further adhered to the principle therein declared in Indiana Union Traction Co. v. Langley (1912), 178 Ind. 135, 98 N.E. 728.
In so far as the ruling upon the demurrer to this answer presents any question, it would not be reversible error, if one was committed, for in the trial of the cause the appellant was permitted to show, under the general denial, all the facts in relation to the pass, and the circumstances under which it was issued by the appellant, and accepted by the appellee's decedent. Board, etc. v. State, ex rel. (1897), 148 Ind. 675, 48 N.E. 226; Perry v. Acme Oil Co. (1909), 44 Ind.App. 207, 88 N.E. 859. What we have to say as to the second proposition, will be discussed under the second assignment of error.
It is contended by appellant that the court erred in overruling his motion for a new trial on the grounds that the verdict of the jury is contrary to law, and is not sustained by sufficient evidence; that the court erred in giving certain instructions of its own motion, the giving of certain instructions tendered by appellee, the refusal to give certain instructions tendered by appellant, for error of law in the admission and refusal to admit certain evidence; and that the damages are excessive.
The facts established by the evidence in this case are: That appellee's decedent was a conductor, on a street car of appellant; that he completed his day's work at midnight; that he lived at a place in said city remote from the car barns of appellant; that to reach his home he was compelled to take and did take passage upon a car of appellant, operated by other employes of appellant; that before taking his departure for home, he asked for and was given a ticket or pass, to the part of the city in which he resided, with conditions thereon as set out above; that it was the custom of the company to furnish employes with such tickets for transportation home; that decedent had been in the employ of appellant for more than two years, and all the time he worked for appellant, had been furnished with tickets such as this one, which were issued only to employes of appellant; that a short distance from where he boarded the car was a curve in the track of the appellant; that at this curve, he was thrown from said car and against the curb of said street with such force that he was so injured that he died very shortly thereafter; that when he entered the car he took a seat in said car provided for passengers, and remained seated until thrown from the car.
The principal question presented is as to whether the conditions of the pass as set out in the second paragraph of answer excuse the appellant from liability. If that question must be answered in the affirmative, then the cause must be reversed. If it is answered in the negative, then the other alleged errors are not available. The answer to this question seems to depend upon the fact, as to whether the appellee was a passenger for hire, or whether the pass given was a gratuity bestowed upon the servant. It seems to be settled in many of the states that where a pass is issued as a gratuity the clause providing that the holder assumes all risks of accident, is binding. It is equally well settled that where there was a consideration for the transportation, that a stipulation on the ticket or pass, that the carrier should be exempt from liability for injuries resulting from the negligence of its servants, such stipulation is contrary to public policy and void. Quimby v. Boston, etc., R. Co. (1890), 150 Mass. 365, 23 N.E. 205, 5 L. R. A. 846; Doyle v. Fitchburg R. Co. (1896), 166 Mass. 492, 44 N.E. 611, 33 L. R. A. 844, 55 Am. St. 417; Indianapolis Traction, etc., Co. v. Klentschy (1907), 167 Ind. 598, 601, 79 N.E. 908, 10 Ann. Cas. 869; Williams v. Oregon Short Line R. Co. (1898), 18 Utah 210, 54 P. 991, 72 Am. St. 777; Eberts v. Detroit, etc., R. Co. (1908), 151 Mich. 260, 115 N.W. 43; Dugan v. Blue...
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